PUBLIC LIABILITY WORDING 1 MEDICAL MALPRACTICE POLICY WORDING SYDNEY MELBOURNE PERTH BRISBANE Tel: 1300 769 772 reception@dualaustralia.com.au www.dualaustralia.com.au DUAL Australia Pty Limited Part of the DUAL International Group Registered in Australia under ABN No. 16 107 553 257
Medical Malpractice Insurance Policy Wording Table of Contents Section 1: PREAMBLE... 3 Section 2: INSURING CLAUSE... 3 Section 3: AUTOMATIC EXTENSIONS... 3 Section 4: OPTIONAL EXTENSIONS:... 10 Section 5: INTERPRETATION... 13 Section 6: DEFINITIONS... 14 Section 7: EXCLUSIONS... 17 Section 8: CLAIM CONDITIONS... 20 Section 9: GENERAL CONDITIONS... 22 Section 10: LIMIT OF LIABILITY... 24 Section 11 AUTHORITY... 25 2
MEDICAL MALPRACTICE INSURANCE Policy Wording Section 1: PREAMBLE 1.1 WE shall provide the cover described in the POLICY, subject to its terms and conditions, for the INSURANCE PERIOD. 1.2 The cover under the POLICY commences upon the payment of the Premium unless otherwise agreed in writing. Section 2: INSURING CLAUSE 2.1 WE agree to indemnify the INSURED for any CLAIM for compensation first made against the INSURED and reported to US during the INSURANCE PERIOD in respect of any civil liability resulting from any actual or alleged breach of professional duty by the INSURED in its conduct of its HEALTHCARE SERVICES. 2.2 WE also agree to pay DEFENCE COSTS either incurred by US or incurred by the INSURED with OUR prior written consent. 2.3 The POLICY shall only provide cover for breaches of professional duty committed after the RETROACTIVE DATE. Section 3: AUTOMATIC EXTENSIONS The automatic extensions are subject to all other POLICY terms, conditions and exclusions (unless otherwise stated). 3.1 Conduct Otherwise Excluded WE agree to indemnify the INSURED against civil liability for compensation arising from any CLAIM made against the INSURED, which would otherwise be excluded by reason of Exclusion 7.14 "Fraud and Dishonesty", Exclusion 7.5 "Intoxicants and Drugs", or Exclusion 7.19 "Sexual Misconduct", including but not limited to a fraudulent or dishonest refund claim against Medicare Australia or any health fund by an EMPLOYEE, provided that such cover shall not be provided: 3.1 to any INSURED who committed, condoned or was aware of and did not try to prevent the excluded behaviour (even if some loss had occurred prior to any such condoning or awareness); or 3.2 in respect of claims made against the INSURED involving the loss of money where DUAL CONTROLS were not in place at the start of the INSURANCE PERIOD. If WE have made any payment under this extension 3.1 and it is subsequently established by admission, judgment or other final determination, that the INSURED for or to whom the payment was made committed, condoned or was aware of and did not take reasonable steps to try to prevent the excluded behaviour, the INSURED must reimburse US for all such payments. 3.2 Former Principals WE agree to provide cover in respect of any CLAIM against any former principal, partner, director, or EMPLOYEE of the INSURED in respect of the conduct of the INSURED's HEALTHCARE SERVICES. 3
3.3 Consultants and Contractors WE agree to provide cover in respect of any CLAIM against the INSURED resulting from the conduct of any consultant or contractor in the conduct of the INSURED's HEALTHCARE SERVICES and for whose acts, errors or omissions the INSURED is liable. WE will not cover the consultant or contractor, 3.4 Loss of Documents WE agree to provide cover in respect of any costs and expenses incurred by the INSURED in replacing or restoring LOST DOCUMENTS for which the INSURED is legally responsible if: a. The loss of the DOCUMENTS is first discovered during the INSURANCE PERIOD; b. The INSURED notifies US within 30 days of discovery of the loss of the DOCUMENTS; c. The INSURED provides US with bills and accounts substantiating the costs and expenses incurred by the INSURED in replacing or restoring the LOST DOCUMENTS; and d. WE approve or a competent person nominated by US approves the bills and accounts. OUR total liability under this extension for any one claim and in the aggregate from all claims during the INSURANCE PERIOD shall not exceed $500,000. This sub-limit is part of and not in addition to the INDEMNITY LIMIT. A separate DEDUCTIBLE of $2,000 or the amount shown in Item 6 headed DEDUCTIBLE (whichever is the lesser) will apply to each loss under this extension. 3.5 Run-off Cover Insured Entity or Subsidiary (Former Subsidiary) WE agree to provide cover in respect of any CLAIM against the INSURED resulting from the conduct of the HEALTHCARE SERVICES by a SUBSIDIARY that ceased or ceases to be a SUBSIDIARY either before or during the INSURANCE PERIOD. 3.6 Joint Venture Liability WE agree to provide cover in respect of any CLAIM against the INSURED resulting from its conduct of the HEALTHCARE SERVICES as a joint venturer. WE will not cover any liability of the joint venture partner. 3.7 Defamation, Libel, Slander WE agree to provide cover in respect of any CLAIM against the INSURED which results from the INSURED making an actual or alleged defamatory statement in the conduct of its HEALTHCARE SERVICES. WE agree to provide cover in respect of any CLAIM against the INSURED which results from actual or alleged libel and/or slander committed by the INSURED in the conduct of the INSURED's HEALTHCARE SERVICES. Cover under this Extension 3.7 shall not be provided if the INSURED intended to commit the libel or slander or defamation with express malice. If WE have made any payment under this Extension 3.7 and it is established by admission, judgment or other final determination that the INSURED for or to whom the payment was made intended to commit the libel or slander or defamation with express malice, that INSURED must reimburse us for all such payments. 4
3.8 Fidelity WE agree to provide cover in respect of any CLAIM against, or loss discovered by, the INSURED resulting from: a. any loss of money, negotiable instruments, bonds, coupons, currency, bank notes, stamps, cheques, bills of exchange, letters of credit and other instruments whether negotiable or not or whether matured or not or securities or documents evidencing title to or ownership of land or any other property belonging to the INSURED or for which the INSURED is legally liable; and/or b. any actual or alleged fraudulent or dishonest instruction, direction or use of electronic equipment, including but not limited to telephony and the Internet, resulting in the unauthorised transfer, delivery or payment of, or dealing with, money, land or any other property belonging to the INSURED or for which the INSURED is legally liable ("fraudulent transaction") where such loss is sustained or fraudulent transaction occurs in consequence of any dishonest, fraudulent, malicious or reckless act or omission of any INSURED, provided always that: i. Such CLAIM is first made against the INSURED or loss or fraudulent transaction is first discovered by the INSURED during the INSURANCE PERIOD and is notified in writing to US within 28 days after such discovery and where the INSURED must bear any costs or expenses to substantiate the loss or fraudulent transaction; ii. WE shall not be liable for any CLAIM based on or loss sustained in respect of any fraudulent transaction which occurs in consequence of any act or omission occurring after the date of the discovery of, or of reasonable cause for suspicion of, dishonest or fraudulent conduct on the part of the INSURED concerned; nor will WE be liable to indemnify any INSURED committing or condoning any dishonest or fraudulent conduct. The cover provided under this extension is sub-limited to $50,000 any one CLAIM or loss and in the aggregate all CLAIMS and losses. This sub-limit is part of and not in addition to the INDEMNITY LIMIT. A separate DEDUCTIBLE of $5,000 will apply to each loss under this extension. 3.9 Intellectual Property WE agree to provide cover in respect of any CLAIM which would otherwise be excluded by Exclusion 7.9 of the Policy "Intellectual Property", arising from any CLAIM made against the INSURED for any unintentional infringement of copyright, trademark, registered design or patent or plagiarism or breach of confidentiality provided that the CLAIM results directly from the conduct of the INSURED's HEALTHCARE SERVICES.. 3.10 Reinstatement of INDEMNITY LIMIT WE agree to provide cover in respect of any CLAIM(S) which require(s) reinstatement of the INDEMNITY LIMIT during the INSURANCE PERIOD because the INDEMNITY LIMIT is eroded (partially or totally) as a result of the payment of an earlier and separate CLAIM, CLAIMS or DEFENCE COSTS. However the aggregate of all such reinstatements in connection with ail CLAIMS will not exceed a total amount equal to the INDEMNITY LIMIT, inclusive of DEFENCE COSTS, and such reinstatements are only available where the subsequent CLAIM(S) is/are based on facts and matters totally different from and unrelated to those which gave rise to the erosion or exhaustion of the INDEMNITY LIMIT. Further, this Extension does not apply until the INSURED has exhausted the limits of any policy which is in excess of the original INDEMNITY LIMIT under this POLICY, other than any similar reinstatement provisions under such excess policies. 5
3.11 Attendance at Inquiries WE agree to provide cover in respect of any legal representation costs resulting directly from the attendance by the INSURED at any INQUIRY. WE will only do this if: a. the INQUIRY is ordered or commissioned during the INSURANCE PERIOD, and b. OUR consent is obtained before such costs are incurred, and c. the INSURED notifies US during the INSURANCE PERIOD that the INSURED is legally compelled to attend the INQUIRY, and d. the INQUIRY is not being held in USA or Canada, and e. the INSURED's attendance is required because of the INSURED's conduct of its HEALTHCARE SERVICES, and f. at OUR option, WE can nominate legal advisers to be used. The cover provided under this extension is sub-limited to $250,000 any one INQUIRY and in the aggregate for all INQUIRIES and a separate DEDUCTIBLE will apply to each INQUIRY under this extension. This sub-limit is part of and not in addition to the INDEMNITY LIMIT. For the application of the terms and conditions of this POLICY to this Extension, INQUIRY is deemed to be a CLAIM. 3.12 Court Attendance Costs WE agree to provide cover in respect of any Court attendance costs of any partner, principal, director or EMPLOYEE of the INSURED who is legally required to attend Court as a witness in a CLAIM covered by the POLICY, to an amount not exceeding $250 per day for EMPLOYEES and $500 per day for those other persons. No DEDUCTIBLE applies. 3.13 Public Relations WE agree to provide cover in respect of any PUBLIC RELATIONS EXPENSES incurred by the INSURED in connection with an INCIDENT in order to prevent or minimise the risk of a CLAIM which would be covered under the POLICY, or in connection with an INCIDENT that results in a CLAIM covered under the POLICY. The INSURED's entitlement to this cover is conditional upon the INSURED providing US with full written details of the INCIDENT no later than 30 days after the INSURED first becomes aware of the INCIDENT. The INCIDENT must occur and be reported during the INSURANCE PERIOD. The INCIDENT must occur outside of the USA/Canada. The cover provided under this extension is sub-limited to $50,000 any one INCIDENT and in the aggregate for all INCIDENTS. A separate DEDUCTIBLE of $1,000 will apply to each INCIDENT under this extension. This sub-limit is part of and not in addition to the INDEMNITY LIMIT. 3.14 Heirs, Estates and Legal Representatives WE agree to provide cover in respect of any estate, heirs, legal representatives or assigns of any deceased or mentally incompetent INSURED in respect of CLAIMS resulting from the conduct of the HEALTHCARE SERVICES by such INSURED. 3.15 Continuous Cover Notwithstanding the Prior Knowledge Clause 7.1 (a) and (b), WE agree to provide cover in respect of any CLAIM made in the INSURANCE PERIOD where the INSURED: 6
a. first became aware, prior to the INSURANCE PERIOD, that a CLAIM might or could arise from facts or circumstances known to it; and b. had not notified US of such facts or circumstances prior to the INSURANCE PERIOD. Provided that: i. WE were the medical malpractice liability insurer of the INSURED when the INSURED first became aware of such facts and circumstances; and ii. iii. iv. WE have continued, without interruption, to be the INSURED's medical malpractice liability insurer up until this POLICY came into effect: and There has not been any fraudulent non-disclosure or fraudulent misrepresentation by the INSURED in respect of such facts or circumstances; and WE have the discretion to apply either the terms and conditions of the Policy on foot when the INSURED first became aware of the facts and circumstances, including but not limited to the INDEMNITY LIMIT and DEDUCTIBLE, or the terms and conditions of this POLICY; and v. The INSURED agrees to only make a claim under one medical malpractice liability insurer POLICY issued by US. For the purpose of this Extension only, the definition of WE/US/OUR in clause 6.36 of this POLICY also includes the Underwriter(s) for which WE were the agent on any previous policy issued by US as such Underwriter's agent to the INSURED. Subject to the terms of this extension and the terms of the POLICY, the intention of this extension is to provide continuous cover to the INSURED notwithstanding any change in the identity of the Underwriters for which we presently act, or have previously acted, as agent. 3.16 Defence Costs in Addition WE agree to provide cover for any DEFENCE COSTS in addition to the INDEMNITY LIMIT, in an amount not exceeding the INDEMNITY LIMIT. WE will only pay these, however, if: a. WE incur them; or b. The INSURED incurs them after first obtaining OUR agreement in writing and the DEFENCE COSTS are in OUR view reasonable and necessary. WE will not be obliged to defend, or to continue to defend, any CLAIMS or pay, or continue to pay, any DEFENCE COSTS associated with such defence, once the INDEMNITY LIMIT has been exhausted. Except as otherwise specified, DEFENCE COSTS does not include any internal or overhead expenses of the INSURED or the cost of the INSURED's time. This Extension does not apply to any Reinstatement of the INDEMNITY LIMIT under Extension 3.10. 3.17 Emergency Defence Costs Notwithstanding General Condition 8.4 "Legal Defence and Settlement" WE agree to provide cover for any DEFENCE COSTS incurred by the INSURED prior to obtaining our consent, provided OUR consent is obtained within 30 days of the first of such DEFENCE COSTS being incurred, and provided that for the purposes of this Extension only: a. WE are only liable to indemnify the INSURED for that part of the INSURED'S liability in respect of each CLAIM and DEFENCE COSTS in excess of the DEDUCTIBLE, and 7
b. If WE subsequently refuse to pay under the POLICY, the INSURED must reimburse US for any DEFENCE COSTS that WE have paid in advance, according to their respective rights and interests. The sub limit of liability for all such payments under this Extension is $100,000. This sub limit forms part of, and is not payable in addition to, the INDEMNITY LIMIT. DEFENCE COSTS referred to in Extension 3.16 "Defence Costs in Addition". 3.18 Statutory Liability Notwithstanding clause 7.2 (a) of the POLICY, WE agree under this Extension to cover STATUTORY LIABILITY. STATUTORY LIABILITY means pecuniary penalties awarded in and under the laws of the jurisdictions of Australia and New Zealand, against: a. an INSURED for any civil offence; and b. an INSURED for a strict liability offence in connection with the discharge, dispersal, release or escape of POLLUTANTS; and c. an INSURED for a strict liability offence in connection with a breach of occupational health and safety law or regulation ("OH&S"), but solely resulting from the conduct by the INSURED of its HEALTHCARE SERVICES and only if WE are not legally prohibited from paying the pecuniary penalties. With respect to the cover under this STATUTORY LIABILITY Extension, WE agree that for any CLAIM brought in the jurisdiction and under the laws of Australia or New Zealand against: i. an INSURED in connection with a breach of occupational health and safety law or regulation "OH&S", the Liability to EMPLOYEE's Exclusion 7.4 of the POLICY does not apply, including in respect of DEFENCE COSTS; ii. an INSURED for a strict liability offence in connection with the discharge, dispersal, release or escape of POLLUTANTS, the Pollution Exclusion 7.10 does not apply including in respect of DEFENCE COSTS. However, WE are not liable to make payment under the POLICY in connection with any STATUTORY LIABILITY directly or indirectly based on, arising out of or attributable to the reckless or grossly negligent conduct of the INSURED, or any knowing or intentional breach or violation of law by the INSURED. This exclusion shall only apply if it is established through a judgment or other final adjudication adverse to the INSURED, or any admission by an INSURED that such conduct did in fact occur. The sub-limit for all cover under this STATUTORY LIABILITY Extension is $250,000 in the aggregate for all CLAIMS inclusive of all DEFENCE COSTS. This sub-limit (inclusive of DEFENCE COSTS) is part of and not in addition to the INDEMNITY LIMIT. DEFENCE COSTS within this sub-limit do not form part of the DEFENCE COSTS limits referred to in Extension 3.16 "Defence Costs In Addition" A separate DEDUCTIBLE of $1,000 will apply to each CLAIM under this extension. For the purpose of this Extension CLAIM means: a) a civil proceeding brought for recovery of pecuniary penalties; or b) any written notice from a relevant authority requiring the INSURED to pay pecuniary penalties. 8
3.19 Previous Business WE agree to provide cover in respect of any principal, partner or director of the INSURED for CLAIMS resulting from HEALTHCARE SERVICES they performed prior to joining the INSURED. This extension will only apply if: a. the professional services were performed in the same profession as the HEALTHCARE SERVICES of the INSURED; and b. there were no more than 10 partners or directors in the past business in which the principal, partner or director practised; and c. the principal, partner or director of the INSURED does not have the benefit of cover under any other insurance or indemnity. The retroactive date for this Extension is limited to the commencement date of the past business in which the principal, partner or director practised. 3.20 Good Samaritan Acts WE agree to provide cover in respect of any CLAIM against the INSURED resulting from the rendering of failure to render first aid and assistance in an emergency situation or accident in a capacity the same as or similar to that of the INSURED'S HEALTHCARE SERVICES in an emergency situation or accident, at the scene of any emergency, accident or disaster, provided that the assistance was not given at a time when the INSURED who gave it was not engaged in a professional capacity by any other person or entity. ln the event of a conflict between this extension and Exclusion 7.18 Obstetrics, this extension shall apply. 3.21 Extended Reporting Period In the event that this POLICY is not renewed or is cancelled for any other reason than nonpayment of premium then the INSURED has until such time that another professional indemnity insurance policy is effected or a period of sixty (60) days commencing on the day immediately following expiry or cancellation of this POLICY, whichever is the lesser period, during which to notify US of any CLAIM first made against the INSURED during the INSURANCE PERIOD, provided that this extension: a. does not reinstate or increase the INDEMNITY LIMIT or extend the INSURANCE PERIOD; and b. will only apply to acts, errors or omissions committed or alleged to have been committed by the INSURED or persons for whom the Insured is legally liable before the end of the INSURANCE PERIOD or the cancellation date of this POLICY where this POLICY has been cancelled. 3.22 Students, Volunteers, Committee/Council Members WE agree to include in the definition of EMPLOYEE any natural person who is a past and/or present STUDENT, VOLUNTEER, COMMITTEE MEMBER or COUNCIL MEMBER, but only in their capacity as such while acting in the course of the HEALTHCARE SERVICES. 3.23 Privacy Complaints and Claims We agree to provide cover in respect of any CLAIM against the INSURED resulting from the unintentional breach of any duty of confidentiality owed to any patient arising at law or any unintentional breach of the Privacy Act 1988 (Commonwealth), Health Records & Information Privacy Act 2002 (NSW), Health Records Act 2001 (Victoria) or Health Records (Privacy and Access) Act 1897 (ACT) or similar privacy legislation enacted by the other States or Territories of the Commonwealth of Australia or the Dominion of New Zealand. 9
3.24 Vicarious Liability for medical practitioners and locum tenens WE agree to provide cover in respect of any CLAIM made against the INSURED arising from any act, error or omission committed or alleged to have been committed by a MEDICAL PRACTITIONER or locum tenens in providing the HEALTHCARE SERVICES and whose acts, errors or omissions you are legally liable provided that such cover shall not extend to any such MEDICAL PRACTITIONER or locum tenens. 3.25 Advanced Defence Costs (Sexual Misconduct) WE agree to advance DEFENCE COSTS incurred by the INSURED before final disposition of a CLAIM against the INSURED alleging SEXUAL MISCONDUCT of the INSURED in the course of its HEALTHCARE SERVICES. If WE have advanced DEFENCE COSTS under this Extension 3.25 and it is subsequently established by admission, judgment, settlement or other final determination that there was SEXUAL MISCONDUCT, the INSURED in whose favour the DEFENCE COSTS were advanced must reimburse US for all such DEFENCE COSTS. The sub limit of liability for all such payments under this Extension is $100,000. This sub limit forms part of, and is not payable in addition to, the INDEMNITY LIMIT for DEFENCE COSTS referred to in Extension 3.16 "Defence Costs in Addition", or the Reinstated INDEMNITY LIMIT (If Extension 3.10 has been triggered). 3.26 Newly Created or Acquired Entity or Subsidiary WE agree to provide coverage to any entity or SUBSIDIARY acquired or created by the INSURED during the INSURANCE PERIOD for a period of up to sixty (60) days (but never beyond the expiry date of the INSURANCE PERIOD) from the date of such acquisition or creation. WE may, at our discretion, agree to provide further coverage beyond a period of sixty (60) days (but never beyond the expiry date of the INSURANCE PERIOD) where: a. the INSURED has notified US of the acquisition or creation of the entity or SUBSIDIARY and has provided all information requested by US; and b. any terms imposed by US, including the charging of any additional premium considered appropriate, have been agreed by the INSURED. Provided always that any coverage provided under this condition will only apply in respect of acts, errors or omissions occurring subsequent to the date of acquisition or creation, unless otherwise agreed in writing by US. Section 4: OPTIONAL EXTENSIONS: 4.1 Public and Products Liability 4.1.1 Insuring Clause This extension applies where the "Public and Products Liability" extension is noted as "Included" in the Schedule. WE agree to indemnify the INSURED for any amount the INSURED becomes legally liable to pay in respect of CLAIMS for compensation for PERSONAL INJURY or PROPERTY DAMAGE arising out of an OCCURRENCE in the INSURANCE PERIOD in connection with the INSURED'S HEALTHCARE SERVICES business (Including any costs or Interest awarded against the INSURED) up to the INDEMNITY LIMIT. 10
4.1.2 Defence Costs and Expenses WE also agree to pay DEFENCE COSTS incurred by US or incurred by the INSURED with OUR prior written consent; For the purpose of this insuring clause only DEFENCE COSTS includes: a. Reasonable costs and expenses, other than loss of earnings, incurred by the INSURED with OUR prior written consent; and b. Costs and expenses incurred by the INSURED for rendering first aid to others at the time of any PERSONAL INJURY; Provided that: i. If to dispose of or settle a CLAIM covered under this section of the POLICY, compensation is payable in excess of the INDEMNITY LIMIT, OUR liability In respect of DEFENCE COSTS and costs and expenses under this clause will be limited to that proportion of such DEFENCE COSTS and costs and expenses as the INDEMNITY LIMIT bears to the total compensation payable to dispose of or settle the CLAIM; ii. WE will not pay for any DEFENCE COSTS or costs or expenses that are incurred after WE have paid or agreed to pay an amount equal to the INDEMNITY LIMIT. 4.1.3 Tenants Liability 4.1.4 Exclusions WE agree to indemnify any lessor with whom the INSURED has entered into an agreement for the rental or lease of premises (not belonging to the INSURED) from which the INSURED conducts its HEALTHCARE SERVICES business, provided always that no wider cover shall be afforded to the lessor than would have been provided hereunder to the INSURED if the INSURED had been held legally liable for the same PERSONAL INJURY or PROPERTY DAMAGE and only where that liability arises out of the INSURED'S use of such premises in the carrying on of its HEALTHCARE SERVICES business. Exclusion 7.3 (b) shall not apply to any cover provided under this Extension. For the purpose of this Optional Extension only all terms, conditions and exclusions of the POLICY apply under this Extension as if the consultant, subcontractor or agent were an INSURED, The cover provided under this Extension is part of and not in addition to the INDEMNITY LIMIT. WE will not cover the INSURED, including for DEFENCE COSTS or other loss, in respect of: 1. Advertising Liability Any CLAIM or liability resulting from statements made by the INSURED or at the INSURED's direction with knowledge that such statements are or may be false. 2. Property In Your Physical or Legal Control Any CLAIM or liability for PROPERTY DAMAGE to property owned by the INSURED or in the INSURED'S physical or legal control, other than: a. Premises which are leased or rented to the INSURED; b. Premises which the INSURED temporarily occupies in order for the INSURED to carry out work; 11
3. Product Recall c. VEHICLES (not belonging to the INSURED or used by the INSURED or on the INSURED's behalf) in the INSURED's physical or legal control whilst within a car park owned or operated by the INSURED unless part of the INSURED's BUSINESS is the operation of a car park for reward; d. The INSURED's EMPLOYEES' property; or e. Other property in the INSURED's physical or legal control, provided that OUR total liability payable from all CLAIMS during the INSURANCE PERIOD shall not exceed $250,000 in the aggregate for all CLAIMS. Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of the recall, withdrawal, inspection, repair, replacement or loss of use of the INSURED's PRODUCTS or of any property of which the INSURED's PRODUCTS form a part, if these PRODUCTS are recalled by the INSURED or another, or withdrawn from the market or from use, because of any known or suspected defect or deficiency therein. 4. Faulty Workmanship Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of the cost of performing, correcting or improving any work undertaken by the INSURED. 5. Genetically Modified or Engineered Organisms (GMO) 6. TSE Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of the manufacture, importing, growing, blending, mixing or distributing of Genetically Modified or Engineered Organisms (GMO). For the purpose of this Exclusion, a GMO is defined to be a living plant, animal or microbe that has been altered by the addition or modification of a gene through the process of genetic engineering and contains genes or portions of genes from unrelated organisms. Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of Transmissible Spongiform Encephalopathy (TSE) including but not limited to Bovine Spongiform Encephalopathy (BSE) or new Variant Creutzfeldt-Jakob Disease (VCJD). This exclusion applies regardless of any other contributing or aggravating cause or event. 7. Loss of Use and Fit for Purpose Any CLAIM or liability arising from loss of use of tangible property which has not been physically damaged or destroyed resulting from: a. A delay in, or lack of performance by the INSURED, or on the behalf of the INSURED, of any contract or agreement or service; or b. The failure of the INSURED's PRODUCTS to meet the level of performance, quality, fitness or durability expressly warranted or represented by the INSURED. This Exclusion shall not apply to loss of use of other tangible property resulting from sudden and accidental physical damage to or destruction of the INSURED's PRODUCTS after the INSURED's PRODUCTS have been put to use by any person or organisation other than the INSURED. 12
8. Product Defect Any CLAIM for PROPERTY DAMAGE to the INSURED'S PRODUCTS if the damage results from any defect contained within the PRODUCT or to their harmful nature or unsuitability 9. Aircraft and Watercraft Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of: a. The ownership, maintenance, servicing, operation or use by the INSURED of: i. Any AIRCRAFT; or ii. Any WATERCRAFT exceeding 8 metres in length, except where such WATERCRAFT is not owned by the INSURED but used by the INSURED for business entertainment; or 10. Vehicles b. PRODUCTS that the INSURED could reasonably be expected to know are installed in or on any AIRCRAFT; or c. The use by the INSURED as a landing area for AIRCRAFT of any PROPERTY or structure owned occupied or controlled by the INSURED. The term "landing area" includes any area on which AIRCRAFT taxi, land, and take-off, are housed, maintained or operated. Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of the use of or ownership or operation by the INSURED of any VEHICLE which is legally required to be registered or legally required to be insured. This exclusion shall not apply to: a. CLAIMS or liability caused by or arising from the delivery or collection of goods to or from any VEHICLE where such PERSONAL INJURY or PROPERTY DAMAGE occurs beyond the limits of any carriage-way or thoroughfare; b. CLAIMS or liability arising during the trade use of any VEHICLE at any site where the INSURED is working or at the INSURED'S premises, however the INSURED is not indemnified under this POLICY where the VEHICLE is used only for the transportation or haulage of goods; or c. CLAIMS or liability caused by or arising out of the use of an unregistered VEHICLE whilst being driven under it s own power between it s point of loading or unloading and a worksite and whilst returning from a worksite to the point of reloading or unloading for it s conveyance from the area. 11. Professional Liability Any CLAIM or liability arising from the rendering or failure to render professional advice or services by the INSURED. Section 5: INTERPRETATION In the POLICY: 5.1 a. Person includes individuals, partnerships, bodies corporate and associations. b. The singular includes the plural and the masculine includes the feminine. c. The headings are for descriptive purposes only. 13
5.2 The construction and interpretation of the POLICY shall be determined in accordance with the law of the jurisdiction in which it is issued. 5.3 In the event that any portion of the POLICY is found to be invalid or unenforceable, the remainder shall remain in full force and effect. 5.4 All POLICY documents shall be read together as one contract and any word or expression to which a specific meaning has been attached shall bear the same meaning wherever it may appear. Section 6: DEFINITIONS In the POLICY: 6.1 AIRCRAFT means any object that is intended to fly or move in or through the air, atmosphere or space. 6.2 CLAIM means: a. any civil proceeding brought by a third party against the INSURED for compensation; or b. a written demand by a third party for monetary damages. 6.3 COMMITTEE MEMBER means a natural person who is a member of a committee of the INSURED. 6.4 COUNCIL MEMBER means a natural person who is a member of council or board of the INSURED. 6.5 DEFENCE COSTS means any necessary and reasonable fees, expenses, costs and disbursements incurred in investigating or defending a CLAIM covered by the POLICY. 6.6 DEDUCTIBLE means the amount specified in Item 6 of the Schedule or otherwise specified in any extension to this POLICY. 6.7 DOCUMENTS means deeds, wills, agreements, maps, plans, books, letters, policies, certificates, forms and documents of any nature, whether printed, written or reproduced by any method including computer records and electronically stored data but does not mean bearer bonds or coupons, stamps, bank or currency notes, money or any negotiable instrument. 6.8 DUAL CONTROLS means that: 6.8.1 any payment by cheque or electronic money transfer or withdrawal from a bank account receives prior approval by at least two approved signatories; and 6.8.2 the person reconciling the INSURED's bank statements is not the same person that operates the INSURED's bank accounts. 6.9 EMPLOYEE means any person employed by the INSURED under a contract of service or apprenticeship during or prior to the commencement of the INSURANCE PERIOD. 6.10 FAMILY MEMBER means the INSURED's: a. Legal or de facto spouse, domestic partner or companion; b. Parent or the parent of the INSURED's legal or de facto spouse, domestic partner or companion; c. Children and children of (a) and (b) above d. Siblings. 14
6.11 HEALTHCARE SERVICES means the HEALTHCARE SERVICES set out in the Schedule. 6.12 INCIDENT means a matter in which the INSURED's reputation and skill in the conduct of the HEALTHCARE SERVICES is brought into question. 6.13 INDEMNITY LIMIT means the amounts specified in Item 6 of the Schedule. 6.14 INQUIRY means any official investigation, examination, inquiry or other proceedings ordered or commissioned by any official body or institution (including but not limited to a coroner's court, Royal Commission, statutory regulatory body or legally constituted industry or professional board) empowered by law to investigate the conduct of the HEALTHCARE SERVICES of the INSURED. 6.15 INSURANCE PERIOD means the period specified in Item 4 of the Schedule. 6.16 INSURED means: a. The person, partnership, company, SUBSIDIARY or other entity, specified as the INSURED in the Schedule; and b. Any person who is during the INSURANCE PERIOD a principal, partner, director or employee of the person, partnership, company, SUBSIDIARY or other entity specified as the INSURED in the Schedule, but only while acting in the course of the HEALTHCARE SERVICES. 6.17 LOST DOCUMENTS means DOCUMENTS that cannot be located following a diligent search, and documents that have been destroyed or damaged. 6.18 MEDICAL PRACTITIONER means a person who has satisfactorily completed a degree or similar qualification in medicine in Australia or elsewhere and who is admitted to practise as a medical practitioner in one or more states or territories of Australia. 6.19 OBSTETRICS SERVICES means healthcare services connected with pregnancy or the act of giving birth after the onset of: a. labour; or b. contractions; or c. the onset of the physical symptoms of labour and for the 48 hour period immediately post actual childbirth. 6.20 OCCURRENCE means an event, including continuous or repeated exposure to substantially the same general conditions, which results in PERSONAL INJURY or PROPERTY DAMAGE, neither expected nor intended by the INSURED. 6.21 PERSONAL INJURY means: a. Bodily injury, death, sickness, disease, disability, shock, fright, mental anguish and mental injury; b. False arrest, false Imprisonment, wrongful detention, malicious prosecution and humiliation; c. Wrongful entry, wrongful eviction or other invasion of right of privacy; and/or d. Assault and battery committed by the INSURED for the purpose of preventing or eliminating danger to persons or property, resulting from an OCCURRENCE. 15
In the event of PERSONAL INJURY arising from latent injury, latent sickness, latent disease or latent disability, that PERSONAL INJURY shall be deemed to have occurred on the day the injury, sickness, disease or disability was first medically diagnosed. 6.22 POLICY means this POLICY wording, the Schedule, the PROPOSAL and any endorsement attaching to and forming part of the POLICY either at commencement or during the INSURANCE PERIOD. 6.23 POLLUTANTS means any contaminant whether solid, liquid or gas including but not limited to chemicals, smoke, vapours and fumes. 6.24 PRODUCT means anything (after it has ceased to be In the INSURED's possession or in the INSURED's legal control) which has been manufactured, grown, extracted, produced, processed, constructed, erected, installed, assembled, altered, repaired, serviced, treated, sold, supplied or distributed by the INSURED in the course of the INSURED's BUSINESS, including any packaging or containers (other than a VEHICLE) used to package or contain the INSURED's PRODUCT(S). 6.25 PRODUCT LIABILITY means any liability for an OCCURRENCE that is caused by or arises out of any PRODUCT. 6.26 PROPERTY DAMAGE means physical loss, damage or destruction of tangible property including the resultant loss of use, or loss of use of tangible property which has not been physically damaged or destroyed, provided such loss of use is caused by or arises from an OCCURRENCE. In the event of a CLAIM arising from latent damage or from the exposure of tangible property to gradual deterioration and eventual damage, such PROPERTY DAMAGE shall be deemed to have occurred on the day such deterioration or damage was first discovered. 6.27 PROPOSAL means the written proposal made by the INSURED to US together with any attachments. 6.28 PUBLIC RELATIONS EXPENSES means any reasonable fees, costs and expenses of a public relations consultant retained with OUR prior written consent (which shall not be unreasonably delayed or withheld). 6.29 RETROACTIVE DATE means the date specified in Item 7 of the Schedule but no earlier than the commencement of the INSURED's business specified In the Schedule but only while in the course of the HEALTHCARE SERVICES. 6.30 SEXUAL MISCONDUCT means molestation of, interference with or other criminal sexual conduct towards another. 6.31 STUDENT means a natural person who is a student who during or prior to commencement of the Insurance Policy obtains practical work experience with the INSURED in connection with their field of study so far as he is acting under the direction, control, or request of, or whilst undertaking any activity approved by the INSURED. 6.32 SUBSIDIARY means any entity which by virtue of any applicable legislation or law is deemed to be a SUBSIDIARY of the INSURED or in which the INSURED owns or controls, directly or indirectly 50% of the issued voting shares of such entity. 6.33 VOLUNTEER means a person, other than a STUDENT, providing the activities of the HEALTHCARE SERVICES on a voluntary, unpaid basis for or on behalf of the INSURED. 6.34 VEHICLE means any type of machine including attachments that is designed to travel on wheels or on self-laid tracks made or intended to be propelled by other than manual or animal power. 6.35 WATERCRAFT means anything made or intended to float on or in, or travel on or through or under water. 16
6.36 WE/US/OUR means DUAL Australia Pty Limited, ACN 107 553 257 as agent of the Underwriters named in the Schedule under the heading "Underwriters". Section 7: EXCLUSIONS 7.1 Prior knowledge WE will not cover the INSURED, including for DEFENCE COSTS or other loss, in respect of: a. Any CLAIM arising from or in connection with a fact or circumstance that the INSURED knew or ought reasonably to have known prior to the INSURANCE PERIOD might or could give rise to a CLAIM; b. Any CLAIM arising from or in connection with a fact or circumstance of which notice has been or reasonably should have been given under any previous insurance; c. Any CLAIM that was first made, threatened or intimated against the INSURED prior to the INSURANCE PERIOD. 7.2 Fines and Penalties and Non-Compensatory a. Taxes, fines or penalties; b. Punitive, aggravated, multiple, exemplary, liquidated or other non-compensatory damages or the consequences of non-payment; c. Any demand for the repayment or refund by the INSURED to a third party of professional fees paid to the INSURED for the provision of professional or other services. 7.3 Assumed Liability Any obligation assumed by the INSURED under any agreement, except that this Exclusion does not apply to: a. Any liability which is, or would have been, implied by law in such agreement or would have arisen separately from it; or b. Optional Extension 4.1 (PERSONAL INJURY and PROPERTY DAMAGE), where the liability arises from a provision In a contract for lease of real or personal property, other than a provision which obliges the INSURED to effect insurance or provide indemnify in respect of the subject matter of that contract; or c. Optional Extension 4.1 (PERSONAL INJURY and PROPERTY DAMAGE), where the liability is in respect of the treatment or use of confidential information. 7.4 Liability to EMPLOYEES Any CLAIM arising from or directly or indirectly attributable to or in consequence of bodily injury, mental injury, sickness, disease or death of any EMPLOYEE or damage to or destruction of any property of any EMPLOYEE, including loss of use. 7.5 Intoxicants and Drugs Any CLAIM or liability arising from or incurred or alleged to have been incurred in connection with any services rendered by any person while that person is under the influence of intoxicants or drugs or from any failure to render services competently or at all because of such influence. 17
7.6 Medical Practitioner Any CLAIM made against an INSURED whom is a MEDICAL PRACTITIONER arising from the MEDICAL PRACTITIONER'S activities as s MEDICAL PRACTIONER including, but not limited to the care, treatment, advice, service or supply of medication in respect of the physical or mental health of a person. 7.7 Liability As Occupier Any CLAIM or liability arising from or incurred or alleged to have been incurred directly or indirectly in connection with the use, occupation, ownership or lease of any real estate or any AIRCRAFT, VEHICLE or WATERCRAFT by or on behalf of the INSURED. 7.8 Goods Sold, Stored, Supplied or Distributed Any CLAIM or liability arising from or in connection with the sale, storage, supply or distribution of any goods or products other than a CLAIM which arises directly from a breach of professional duty during the actual provision of the HEALTHCARE SERVICES. 7.9 Intellectual Property 7.10 Pollution 7.11 War/Terrorism 7.12 Nuclear Any CLAIM arising from infringement or alleged infringement of any intellectual property right including but not limited to copyright, patent, trademark, privacy, plagiarism, design or confidentiality. Any CLAIM arising from or directly or indirectly attributable to or in consequence of the actual or alleged release or discharge of POLLUTANTS. Any CLAIM or liability of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following, regardless of any cause or event contributing concurrently or in any other sequence: a. War, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or b. Any act of terrorism; or c. Any action taken in controlling, preventing, suppressing or in any way relating to (a) and/or (b) above. For the purposes of this exclusion, an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. Any CLAIM or liability arising from or directly or indirectly attributable to or in connection with: a. Loss or destruction of or damage to any property whatsoever or any loss or expense whatsoever resulting from or arising therefrom or any consequential loss; or b. Any legal liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from: 18
i. Ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; or ii. The radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. 7.13 Trading Debts Provided that this exclusion shall not apply to Ionising radiation sourced from radioisotopes or x-rays when used by qualified medical staff in any medical procedure or diagnosis. Any CLAIM arising from or directly or indirectly attributable to any trading debt or business liability of the INSURED or any guarantee given by the INSURED for a debt. 7.14 Fraud and Dishonesty 7.15 Associates a. Any CLAIM arising from or directly or indirectly attributable to or in consequence of any actual or alleged act or omission by the INSURED, its consultants, subcontractors or agents which was reckless, fraudulent, dishonest, malicious or criminal. b. Any CLAIM arising from or directly or indirectly attributable to or in consequence of any wilful breach of any statute, regulation, contract or duty by the INSURED, its consultants, sub-contractors or agents. a. Any CLAIM by, on behalf of or for the benefit of any INSURED; b. Any CLAIM by, on behalf of or for the benefit of any SUBSIDIARY; or c. Any CLAIM by, on behalf of or for the benefit of any FAMILY MEMBER of the INSURED, unless the FAMILY MEMBER is acting without any prior direct or indirect solicitation or co-operation from the INSURED; irrespective of the capacity in which the CLAIM is brought. 7.16 Directors & Officers Any CLAIM alleging a breach by an INSURED of a duty owed or any alleged wrongful conduct in the capacity of a director, secretary or officer of a body corporate. 7.17 Asbestos and Toxic Mould 7.18 Obstetrics Any CLAIM or liability arising from or directly or indirectly attributable to or in consequence of: a. asbestos or other things that contain it; or b. the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of fungi, moulds, or mycotoxins relating to Stachy Botrys, such action to including investigating, testing for, detection of, monitoring of, treating, remediating or removing such fungi, moulds, mycotoxins relating to Stachy Botrys. Any CLAIM or liability directly or indirectly arising from or attributable to the provision or failure to provide OBSTETRICS SERVICES. 7.19 Sexual Misconduct Any CLAIM or liability directly or indirectly arising from or attributable to any actual or alleged SEXUAL MISCONDUCT towards people under the care of the INSURED (other than the advancement of DEFENCE COSTS as set out in EXTENSION 3.25). 19
7.20 Subrogation Any CLAIM directly or indirectly arising from or in respect of any liability in relation to which the INSURED has at any time entered into a deed or agreement excluding, limiting or delaying the INSURED's legal rights of recovery against another. 7.21 Sanctions Limitation Exclusion Any CLAIM or liability for any matter where the provision of such benefit would expose US to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom or United States of America. Section 8: CLAIM CONDITIONS 8.1 The cover provided by the POLICY shall extend to the conduct of the HEALTHCARE SERVICES by the INSURED anywhere in the world, except within the territorial limits of the United States of America or the dominion of Canada or their respective territories or protectorates. 8.2 Notification 8.3 Co-operation a. The INSURED shall notify US of any CLAIM or loss as soon as practicable and within the INSURANCE PERIOD. b. Notice of any CLAIM or loss shall be given to US in writing, and delivered to: DUAL Australia Pty Ltd, Level 6, 160 Sussex Street, Sydney, NSW, 2000 Australia a. The INSURED shall notify US, at the INSURED's own cost, frankly and honestly provide US with all information and assistance required by US and/or the lawyers and investigators and others appointed by US in relation to any CLAIM or loss. Any unreasonable failure to comply with this obligation may entitle US to deny cover for the CLAIM or loss, in whole or part. b. The INSURED shall, at its own cost, do all things reasonably practicable to minimise the INSURED's liability in respect of any CLAIM or loss. 8.4 Legal Defence and Settlement a. Unless otherwise agreed, WE shall have the right to assume, in the name of the INSURED, the legal defence of any CLAIM covered under this POLICY. WE shall have the right to appoint the lawyers that will defend and represent the INSURED in respect of any CLAIM. b. WE shall have full discretion in managing any negotiation or proceeding as to the resolution of such CLAIM. WE shall be entitled to settle a CLAIM if WE so choose. c. The INSURED agrees not to admit liability for or settle any CLAIM or loss, make any admission, offer any payment or assume any obligation in connection with any CLAIM or loss, or incur any DEFENCE COSTS in connection with any CLAIM, without OUR written consent. 20
d. WE shall not be liable for any settlement, DEFENCE COSTS, admission, offer, payment or assumed obligation made, incurred or entered into without OUR written consent. e. If WE are of the opinion that a CLAIM will not exceed the DEDUCTIBLE, WE may require the INSURED to conduct the defence of the CLAIM. If the DEFENCE COSTS and/or any other payment exceed the DEDUCTIBLE then WE will pay the amount in excess of the DEDUCTIBLE. 8.5 INSURED's right to contest 8.6 Senior Counsel 8.7 Non-Imputation In the event that WE recommend settlement of a CLAIM and the INSURED does not agree to the settlement of the CLAIM, and the INSURED decides to and WE agree to allow the INSURED to contest the CLAIM, OUR liability shall not exceed the amount for which the CLAIM could have been settled, and DEFENCE COSTS incurred up to the date upon which the CLAIM could have been settled. a. WE shall not require the INSURED to contest a CLAIM, if it does not agree to it being contested, unless a Senior Counsel (agreed upon by the INSURED and US) advises that the CLAIM should be contested, taking into account all likely DEFENCE COSTS, prospects of successfully defending the CLAIM and the damages and costs likely to be recovered by the third party claimant. b. The costs of Senior Counsel's advice shall be regarded as part of the DEFENCE COSTS. Except for Exclusion Clause 7.1, no state of mind or knowledge possessed by any one INSURED will be imputed to any other INSURED for the purpose of determining whether any provision in this POLICY applies. However, any state of mind or knowledge possessed by any past or present principal, director, partner of the INSURED will be imputed to the INSURED in Clause 6.15(a) of this POLICY. 8.8 Other Insurance To the extent permitted by the Insurance Contracts Act 1984, this POLICY will only cover loss to the extent that the amount of such loss is in excess of any indemnity or cover available to the INSURED in respect of that loss under any other policy entered into by the INSURED. To the extent permitted by the Insurance Contracts Act 1984, this POLICY will only cover loss to the extent that the amount of such loss is in excess of any indemnity or cover available to the INSURED in respect of that loss under any other policy effected on behalf of the INSURED or under which the INSURED is a beneficiary (but not a policy to which the preceding paragraph applies). Neither of the two paragraphs immediately above applies to such other insurance that is written only as specific excess insurance over the INDEMNITY LIMIT provided in this POLICY. If such other insurance is provided by US, or any other member company, associate or affiliate, and it covers a loss covered by this POLICY in respect of a CLAIM or INQUIRY, the INDEMNITY LIMIT under this POLICY in respect of that CLAIM or Inquiry shall be reduced by any amount paid by US (or member company, associate or affiliate) under such other insurance. 21
Section 9: GENERAL CONDITIONS 9.1 Subrogation a. Where WE have paid an amount under the POLICY WE become entitled to any rights of the INSURED against any party in relation to the CLAIM or loss, to the extent of OUR payment. b. The INSURED, at its own cost, must assist US and provide information as WE may reasonably require to exercise OUR rights of subrogation. This may include providing and signing statements and other documents and the giving of evidence, among other things. 9.2 Alteration to Risk 9.3 Assignment 9.4 Cancellation The INSURED must notify US in writing as soon as practicable of any material alteration to the risk during the INSURANCE PERIOD including: a. The INSURED going into voluntary administration, bankruptcy, receivership or liquidation; or b. The INSURED failing to pay debts as and when those debts become due; or c. The INSURED breaching any other obligation giving rise to the appointment of a receiver or the commencement of bankruptcy or winding up proceedings; or d. Any material change in the nature of the PROFESSIONAL ACTIVITY. WE may not cover the INSURED for any CLAIM if the INSURED does not notify US in writing as soon as practicable of any material alteration to risk. The INSURED must not assign the POLICY or any rights under the POLICY without OUR prior written consent by way of endorsement to the POLICY. a. The INSURED may cancel the POLICY at any time by notifying US in writing. b. WE may cancel the POLICY in accordance with the provisions of the Insurance Contracts Act 1984 (Commonwealth). c. On cancellation of this POLICY, WE will retain the proportion of the premium calculated pro rata as at the date of the cancellation plus fifteen percent (15%) of that amount. 9.5 Jurisdictional Limitation The cover provided by the POLICY shall extend to a CLAIM brought anywhere in the world except: a. Any CLAIM brought within the territorial limits of the United States of America or the dominion of Canada or their territories or protectorates; b. To enforce any judgement, order or award obtained in or determined under the laws of the United States of America or the dominion of Canada or their territories or protectorates. 22
9.6 Governing Law and Jurisdiction This POLICY is governed by the laws of the Commonwealth of Australia and the State or Territory where the POLICY was issued. Any disputes relating to interpretation shall be submitted to the exclusive jurisdiction of the Courts of Australia. 9.7 Insuring Clause Clarification For the avoidance of doubt, the cover provided by the Insuring Clause of this POLICY, includes but is not restricted to civil liability under the Trade Practices Act (1974), the Fair Trading Act 1987 (NSW), the Fair Trading Act 1985 (Victoria), Australian Securities and Investment Commission Act or similar legislation enacted by the other States or Territories of the Commonwealth of Australia or the Dominion of New Zealand. 9.8 Several Liability Notice The subscribing insurers' obligations under contracts of insurance to which they subscribe are several and not joint and are limited solely to the extent of their individual subscriptions. The subscribing Insurers are not responsible for the subscription of any co-subscribing insurer who for any reason does not satisfy all or part of its obligations. 9.9 Complaints Procedures Any enquiry or complaint relating to this Insurance should be referred to US in the first instance. If this does not resolve the matter or you are not satisfied with the way a complaint has been dealt with, you should write to: Lloyd's Underwriters' General Representative in Australia Suite 2, Level 21 Angel Place 123 Pitt Street Sydney NSW20G0 Telephone Number: {02)92231433 Facsimile Number; (02)92231466 who will refer your dispute to Policyholder & Market Assistance at Lloyd's. Complaints that cannot be resolved by Policyholder & Market Assistance may be referred to the Financial Ombudsman Service (UK). Further details will be provided at the appropriate stage of the complaints process. For the purpose of this Clause only, "this Insurance" means the POLICY, "you/your" means the INSURED. 9.10 Service Of Suit (Australia) The Underwriters hereon agree that:- a. In the event of a dispute arising under this POLICY, Underwriters at the request of the INSURED (or reinsured) will submit to the jurisdiction of any competent Court in the Commonwealth of Australia. Such dispute shall be determined in accordance with the law and practice applicable in such Court. b. Any summons notice or process to be served upon the Underwriters may be served upon Lloyd's General Representative at Lloyd's Australia: 23
Lloyd's Australia Limited Suite 2, Level 21 Angel Place 123 Pitt Street Sydney NSW 2000 who has authority to accept service and to enter an appearance on Underwriters' behalf, and who is directed at the request of the INSURED (or reinsured) to give a written undertaking to the INSURED (or reinsured) that he will enter an appearance on Underwriters' behalf. c. If a suit is instituted against any one of the Underwriters all Underwriters hereon will abide by the final decision of such Court or any competent Appellate Court. 9.11 General Insurance Code of Practice This POLICY is Insurance Council of Australia's General Insurance Code of Practice compliant, apart from any claims adjusted outside Australia. Underwriters at Lloyd's and DUAL Australia proudly support the General Insurance Code of Practice. The purpose of the Code is to raise standards of practice and service in the general insurance Industry. A copy of this Code is available by contacting DUAL Australia or from the Insurance Council of Australia's website at www.ica.com.au or from the Code's dedicated website at www.codeofpractice.com.au Section 10: LIMIT OF LIABILITY 10.1 Indemnity Limit 10.2 Deductible Subject to Clause 3.10 and Clause 3.16, OUR total liability under the POLICY for any one CLAIM Including DEFENCE COSTS and in the aggregate from all CLAIMS including DEFENCE COSTS shall not exceed the INDEMNITY LIMIT. For the purposes of determining the INDEMNITY LIMIT available for each CLAIM covered by the POLICY, all CLAIMS arising from the same breach of professional duty, or related breaches of professional duty, shall be regarded as one CLAIM. a, The INSURED is responsible for the DEDUCTIBLE in respect of each and every CLAIM. Subject to clause (c) below, WE are only liable to indemnify the INSURED for that part of the INSURED's liability in respect of each CLAIM and DEFENCE COSTS in excess of the DEDUCTIBLE. b. Where WE have paid on the INSURED's behalf part or all of the DEDUCTIBLE, the INSURED shall reimburse US. c. Unless otherwise expressed in the Schedule, all DEDUCTIBLES are inclusive of DEFENCE COSTS up to the amount of the DEDUCTIBLE. d. Costs and expenses incurred by US in determining whether WE are liable to indemnify the INSURED under the POLICY shall not be subject to the DEDUCTIBLE and will be met by US. e. For the purposes of determining the DEDUCTIBLE(S) applicable to any CLAIM(S) covered by the POLICY, all CLAIMS arising from the same breach of professional duty, or related breaches of professional duty, shall be regarded as one CLAIM. 24
Section 11: AUTHORITY This is to certify that in accordance with the authorisation granted under contract to the undersigned by certain underwriters as named in the Schedule: In consideration of the premium paid the underwriters are hereby bound, severally and not jointly, to insure in accordance with the terms and conditions contained herein or endorsed hereon. WE hereby agree, to the extent and in the manner hereinafter provided, to indemnify or otherwise pay the INSURED in respect of the contingencies or events specified in the sections of the POLICY. However, this POLICY only applies to those sections as indicated in the Schedule attached to this POLICY. Privacy Statement At DUAL Australia Pty Ltd, we are committed to compliance with the Privacy Act 1988 (Cth). We use your personal information to assess the risk of and provide insurance, and assess and manage claims. We may also use your contact details to send you information and offers about products and services that we believe will be of interest to you. If you don t provide us with full information, we may not be able to provide insurance or assess a claim. If you provide us with information about someone else you must obtain their consent to do so. We provide your information to the insurer we represent when we issue and administer your insurance. When providing a quotation or insurance terms, we will tell you if the insurer is overseas and if so, where they are. We are part of the Hyperion Insurance Group and may provide your information to UK based Group entities who provide us with business support services. We may also provide your information to your broker and our contracted third party service providers (e.g. claims management companies), but will take all reasonable steps to ensure that they comply with the Privacy Act. Our Privacy Policy contains information about how you can access the information we hold about you, ask us to correct it, or make a privacy related complaint. You can obtain a copy from our Privacy Officer by telephone (+61 (0)2 9248 6300), email (reception@dualaustralia.com.au) or by visiting our website (www.dualaustralia.com.au). By providing us with your personal information, you consent to its collection and use as outlined above and in our Privacy Policy. 25